EXHIBIT B-2
DRAFT 07/02/03
THIRD AMENDMENT TO FUEL LEASE
THIS THIRD AMENDMENT TO FUEL LEASE (this "AMENDMENT") is entered into
as of this ___ of July, 2003 between XXXXXX FUEL, INC., a Delaware corporation,
as lessor (the "LESSOR") and INTERSTATE POWER AND LIGHT COMPANY, an Iowa
corporation, as lessee (the "LESSEE").
W I T N E S S E T H:
WHEREAS, the Lessor and the Lessee are parties to that certain Fuel
Lease dated as of August 21, 1973, as amended (the "FUEL LEASE"); and
WHEREAS, the Lessor and the Lessee desire to amend the Fuel Lease in
certain respects in order to correct certain definitions and terminology to
reflect better the financing that the Lessor will use to support the acquisition
and leasing of Nuclear Fuel to the Lessee under the Fuel Lease;
NOW, THEREFORE, in consideration of the premises set forth herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used and not otherwise defined
in this Amendment shall have the meanings attributed to them in the Fuel Lease.
2. AMENDMENT OF FUEL LEASE. The Fuel Lease is hereby amended as
follows:
(a) The existing definitions of the terms "Assignee," "Credit
Agreement," "Daily Lease Charge" and "Security Agreement" in Section 1 of the
Fuel Lease are hereby amended in their entirety to read as follows:
"ASSIGNEE" means each Person to which any part of the Lessor's
interest under this Lease, or any rents or other rights of the Lessor
under this Lease, shall at the time have been assigned, conditionally
or otherwise, by the Lessor, as contemplated by Section 26 of the Lease
(including, without limitation, the Collateral Agent, the Banks and the
holders of any outstanding IT Notes); except:
(i) in Sections 4, 5, 12, 17, 18, 21 and 22, references to "the
Assignee" shall mean the Collateral Agent;
(ii) in Sections 7, 10, 16 and 19 and where the context
otherwise requires, references to "the Assignee" shall mean each
Assignee,
severally, and
(iii) references to "the Lessor and each Assignee" shall mean
the Assignee(s) alone if an assignment as contemplated by Section 26
shall be in effect, or the Lessor alone if no such assignment shall be
in effect.
"CREDIT AGREEMENT" means (i) the Third Amended and Restated
Credit Agreement dated as of August 3, 2001 among the Lessor, Bank One,
NA individually and as agent, and the Banks party thereto, relating to
the Nuclear Fuel, as the same may be amended, restated, supplemented or
otherwise modified from time to time, and (ii) any credit agreement
entered into by the Lessor in substitution for or in addition to such
Third Amended and Restated Credit Agreement which provides for the
extension of loans relating to Nuclear Fuel to the Company, as the same
may be amended, restated, supplemented or otherwise modified from time
to time.
"DAILY LEASE CHARGE" shall mean, for any calendar day (whether
or not a Business Day) during the term of this Lease, the sum of:
(i) an accrual for such day of (1) all interest
expense and all amortization of debt discount (whether or not
paid), with respect to all Commercial Paper, IT Notes,
revolving loans under the Credit Agreement and other
indebtedness or liabilities incurred or owed by the Lessor
pursuant to the Basic Documents, which are outstanding at the
close of business on such day and (2) all commitment, standby
letter of credit, facility and other fees, costs and expenses
(whether or not paid), if any, incurred or owed by the Lessor
pursuant to the Basic Documents; plus
(ii) an accrual for such day with respect to all
amounts paid or due and payable by the Lessor with respect to
the transactions contemplated by the Basic Documents for fees
and expenses for depositaries or issuing agents' expenses,
dealers for the Commercial Paper, and placement agents for the
IT Notes; plus
(iii) a charge determined by dividing (x) 1/8 of 1%
of the Stipulated Loss Value of the Nuclear Fuel at the close
of business on such day by (y) 365.
Any figure used in the computation of any component of the Daily Lease
Charge shall be stated to ten decimal places. No accrual, charge or
other item which would constitute a part of the Acquisition Cost shall
be included in the computation of the Daily Lease Charge.
"SECURITY AGREEMENT" shall mean the Third Amended and Restated
Security Agreement dated as of July __, 2003 from the Lessor to the
Collateral Agent, which creates a security interest in the Nuclear
Fuel, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
(b) Section 1 of the Fuel Lease is hereby further amended to add
the following new defined terms and related definitions:
"BANK" means each of the lenders and participants which is or
becomes a party to a Credit Agreement.
"BASIC DOCUMENTS" means this Lease, the Note Purchase
Agreements, the IT Notes, the Credit Agreement (including any notes
issued thereunder to the Banks), the Commercial Paper, the Security
Agreement, the Collateral Agency Agreement, the Consent and Agreement,
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the Management Agreement, the Dealer Agreement, the Assignment
Agreement, each Xxxx of Sale, each Fuel Schedule and other agreements
related or incidental thereto, as each of the above may be amended,
restated, supplemented or otherwise modified from time to time.
"COLLATERAL AGENCY AGREEMENT" means the Collateral Agency
Agreement dated as of July ___, 2003 among the Collateral Agent, the
Banks and the holders of the IT Notes, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"COLLATERAL AGENT" means the Person named as such in the
Security Agreement.
"CONSENT AND AGREEMENT" means the Consent and Agreement of the
Lessee, dated as of July __, 2003, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"DEALER AGREEMENT" means the Dealer Agreement dated [August
21, 1973] between the Lessor and Xxxxxxx, Xxxxx & Co. with respect to
the sale of Commercial Paper, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"IT NOTES" means the promissory notes issued by the Lessor
from time to time under and in accordance with the terms, provisions
and limitations of a Note Purchase Agreement, and shall include,
without limitation, the Series 2003 Notes.
"MANAGEMENT AGREEMENT" means the Agreement dated as of August
21, 1973 between the Lessor and Broad Street Contract Services, Inc.
with respect to management and advisory services to the Lessor, as the
same may be amended, restated, supplemented or otherwise modified from
time to time.
"NOTE PURCHASE AGREEMENT" means any of, and "NOTE PURCHASE
AGREEMENTS" means all of, (i) the Note Purchase Agreement dated as of
July __, 2003, relating to the issue and sale by the Lessor of the
Series 2003 Notes, as the same may be amended, restated, supplemented
or otherwise modified from time to time and (ii) any similar agreements
hereafter entered into by the Lessor relating to the purchase and sale
of IT Notes, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"PERSON" means any individual, partnership, joint venture,
limited liability company, corporation, trust, unincorporated
organization or other business entity or any government or any
political subdivision or agency thereof.
"SERIES 2003 NOTES" means the Senior Secured Notes due May 15,
2008 issued by the Lessor.
"TERMINATION RENT" shall mean an amount which, when added to
the amounts specified in subclauses (i) and (ii) of clause (y) of the
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second sentence of Section 19(b), in the case of Section 19(b), or
added to the amounts specified in subclauses (i) and (ii) of clause (x)
of Section 24(b)(ii)(B), in the case of Section 24(b)(ii)(B), will be
sufficient to enable the Lessor (i) to retire, pursuant to the terms of
the Basic Documents, all of the Lessor's then outstanding obligations
under (A) all Note Purchase Agreements, including all IT Notes issued
pursuant thereto, (B) the Credit Agreement, including all notes issued
thereunder to Banks, and (C) all Commercial Paper, (ii) to pay all
charges, premiums and fees owed to all holders of IT Notes under the
Note Purchase Agreements applicable thereto and the Banks under the
Credit Agreement and (iii) to pay all other obligations of the Lessor
incurred in connection with the implementation of the transactions
contemplated by the Basic Documents.
(c) Clause (i) of the last sentence of Section 5 of the Fuel Lease
is hereby amended to read in its entirety as follows:
"(i) such payment exceeds the amount of the proceeds receivable by the
Lessor when it draws down the maximum amount of credit available to it
under the Credit Agreement and the IT Notes at the time of such payment
to the Lessee and"
(d) Clause (ix) of Section 19(a) of the Fuel Lease is hereby
amended to read in its entirety as follows:
"(ix) (1) the Credit Agreement shall have terminated pursuant to
Section 2.04 or Article VII thereof or the Lessor shall be unable to
obtain a revolving credit loan pursuant to Section 1.01 of the Credit
Agreement or (2) the IT Notes shall have been declared, or shall
otherwise have become, due as the result of the occurrence of an event
of default as defined and provided in any of the Note Purchase
Agreements;"
(e) Clause (y) of the second sentence of Section 19(b) of the Fuel
Lease is hereby amended to read in its entirety as follows:
"(y) state that on a settlement date occurring not less than 90 nor
more than 120 days after the giving of such notice, which settlement
date shall be specified therein, the Lessee shall be obligated to pay
to the Lessor, as the purchase price for the Nuclear Fuel an amount
equal to the sum of (i) the Stipulated Loss Value plus (ii) the Daily
Lease Charge accrued to and including the settlement date, including as
accrued for the purposes of this computation unamortized debt discount
and/or unaccrued interest to maturity with respect to all Commercial
Paper outstanding under the Credit Agreement as of the settlement date,
plus (iii) the Termination Rent, and"
(f) Clause (x) of Section 24(b)(ii)(B) of the Fuel Lease is hereby
amended to read in its entirety as follows:
"(x) the sum of (i) the Stipulated Loss Value of the Nuclear Fuel as of
the date of such termination of this Lease plus (ii) the Daily Lease
Charge accrued to and including such date of termination, including as
accrued for the purposes of this computation unamortized debt discount
and/or unaccrued interest to maturity with respect to all Commercial
Paper outstanding under the Credit Agreement as of such date of
termination, plus (iii) the Termination Rent, over"
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3. RATIFICATION AND REAFFIRMATION. The Fuel Lease remains in full
force and effect and is hereby ratified, approved, and confirmed in all
respects. From and after the date first written above, each reference in the
Fuel Lease to "this Lease", "hereof," "hereunder," or words of like import, and
all references to the Fuel Lease in any and all agreements, instruments,
documents, notes, certificates, and other writings of every kind and nature
shall be deemed to refer to the Fuel Lease as amended hereby.
4. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one Amendment.
5. EFFECTIVE DATE. This Amendment shall become effective as of
the date first written above (the "EFFECTIVE DATE") upon execution by the
parties hereto.
6. GOVERNING LAW. This Amendment shall in all respects by governed by,
and construed in accordance with, the laws of the State of Iowa, including all
matters of construction, validity and performance.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first written above.
XXXXXX FUEL, INC.
By_________________________________
Name:
Title:
INTERSTATE POWER AND LIGHT COMPANY
By_________________________________
Name:
Title
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